Magistrates Commission on suspension of magistrates, with Deputy Minister

Meeting report

Opening Comments and Adoption of Committee Agenda

The Chairperson opened the meeting by noting its purpose was to consider progress reports on the removal/suspension of Ms J Van Schalkwyk, Ms R Malahlela, Ms S Monaledi, Mr M Kgomo and Mr I Morake. The Committee would also consider withholding remuneration of Mr P Hole. There was also an item to consider removal from office of Ms X Stuurman and Ms V Gqiba as Magistrates.

The Committee adopted its agenda for the day.

Briefing by the Deputy Minister of Justice and Correctional Services

Deputy Minister John Jeffery proceeded to provide the Committee with an overview on the progress report on the suspension/removal of Magistrates. The report was from the Magistrate’s Commission (MC) and there were two types of reports, namely, reports on the progress made removing Magistrates listed and reports on the suspension of Magistrates. Some of the matters were prolonged although the MC was doing everything in its power to fast track the process.

Progress Reports on Suspension/Removal of Magistrates

Adv Cassim Moosa, Chairperson of the Magistrate’s Commission Ethics Committee, outlined the matters against each party as contained in the progress report.

Ms J Van Schalkwyk, Chief Magistrate, Kempton Park

Adv Moosa stated that the MC, on 11 May 2013, recommended the suspension of Ms J Van Schalkwyk to the Minister based on 18 counts of misconduct against her. Parliament confirmed the provisional suspension of Ms J Van Schalkwyk on 12 November 2013 after the Ministers’ presentation to Parliament. A presiding officer and a person to lead the evidence (PLE) at the misconduct hearing were appointed by the MC on 18 September 2013. She challenged the validity of the appointment of the PLE on the misconduct hearing. The Gauteng High Court ruled against her on 1 August 2017 and she filed an appeal on 29 August, 2017. The MC was awaiting a date for the appeal and the matter would be concluded as soon as the date was given.

Ms R Malahlela, Aspirant Additional Magistrate, Delmas

Adv Moosa stated that the Minister, on recommendations of the MC, suspended Ms R Malahlela on 17 July 2014. The two Houses of Parliament confirmed the provisional suspension of Ms R Malahlela on 6 and 8 September 2014 respectively. She challenged the decision to place her on suspension for misconduct and the case was set for hearing in May 2017. Her attorney withdrew from the case because the request for a notice of motion, supported by an affidavit, was refused. The Court ordered her to pay the wasted costs because the matter did not proceed. The matter was postponed but the MC was in communication with her attorney to continue with the case. The State Attorney would revert to the MC on the way forward and the new date would be communicated soon. The MC was doing everything in its power to curb delays.

Ms S Monaledi, Regional Court President, North West

Adv Moosa stated that the Minister suspended Ms S Monaledi on 30 November 2016 and both Houses of Parliament confirmed her suspension respectively on 16 March and 11 May 2017. The MC proceeded with her case but on two separate occasions Ms S Monaledi refused to appear. The process was referred to 4 and 6 December 2017 for pre-trial and hearing.

Mr M Kgomo, Additional Magistrate, Randburg

Adv Moosa remarked that Mr M Kgomo’s case was delayed due to the criminal charge against him. The office of the Director of the National Prosecuting Authority requested that the MC not commence any disciplinary inquiry until the criminal matter against Mr M Kgomo was completed. The MC proceeded with a case against Mr M Kgomo on 26 July 2017 but the case was postponed to 23 October 2017 because he had not appeared on the earlier date.

Magistrate I Morake, Lichtenburg

Adv Moosa stated that Magistrate I Morake was found guilty of a five-count charge of misconduct on 1 August 2017. The matter was postponed to 13 September because the presiding officer and Magistrate I Morake were not been available. The MC was currently awaiting a new date from the courts.

Discussion

Mr M Mohapi (ANC, Free State) asked for clarity on why disciplinary matters involving Magistrates were prolonged in the MC. He also asked the team to confirm if the MC had lapses in its discipline and asked the MC to state strategies to curb disciplinary lapses in the MC if it existed.

Adv Hans Meijer, MC, indicated that because the parties involved were Magistrates, the Commission used every mechanism available to not delay the process. The MC did everything in its power to carry out disciplinary measures but delays occurred because the Magistrates’ knew the system and tried to beat it. The principle of natural justice made it difficult to fast track cases.

Mr Mohapi asked the MC to confirm if it had any systems to beat the delay.

Adv Meijer responded that in terms of systems, the MC did everything to ensure disciplinary measures were carried out speedily. However, the process depended on the presiding officer who was responsible for taking decisions. The MC did everything in its power to not allow magistrates to prolong cases.

Deputy Minister Jeffery added that situations occurred when the parties involved in the matter reported that they were sick and this caused delay. The Presiding Officer had to determine if it was true or false and then take action accordingly. Presiding Officers were Magistrates but were independent and not instructed by the MC. The Deputy Minister approached the Presiding Officer on the case of Ms J Van Schalkwyk and, in this case, the MC was still awaiting the decision of the Presiding Officer. Provisions, such as stopping remuneration of the parties involved, were available if the parties were convicted in the criminal court. Legislation still needed to change because even when Magistrates were convicted in criminal courts they were not immediately removed until the parties were found guilty in a disciplinary hearing.  

Adv Meijer added that remuneration was stopped when the party was convicted on a criminal case.

Mr M Mhlanga (ANC, Mpumalanga) stated that the Committee would not condone payment of salary to the new Magistrate and the party involved at the same time for the same position. The MC must initiate a mechanism to stop payment of salaries to two parties for the same position.

Ms B Engelbrecht (DA, Gauteng) said the Committee needed to examine legislative challenges, close loopholes within the law and find a way to stop the salaries of the party involved at the earliest possible time.

Adv Meijer responded that if the party suspended was suspected of trying to delay the disciplinary hearing, the party’s’ salary can be stopped based on evidence. However, it was sometimes difficult to establish the evidence.

Mr Mohapi requested a report on the status of financial implication of expenditure incurred since inception of the cases to substantiate how the Committee can come up with the best strategies to stop the salaries. He also acknowledged that the MC had challenges but when discrepancies were confirmed, the Presiding Officer needed to take responsibility.

Additional Report on Suspension/Removal

Adv Meijer gave an overview of the other reports.  

Regional Magistrate, Mr P Hole

Mr P Hole was found guilty of a ten-count charge of misconduct. The sanction placed by the Presiding officer was removal of Mr P Hole from office and stoppage of his salary. The MC‘s plea to the Committee was to stop his salary and also remove him as a Magistrate.

Ms X Stuurman, Additional Magistrate, East London

Ms X Stuurman was found guilty of 17 charges of misconduct. The recommendation placed by the Presiding officer was removal of Ms X Stuurman from office. The MC‘s plea to the Committee was to remove her from the office of a Magistrate.

Ms V Gqiba, Chief Magistrate, East London

Ms V Gqiba was found guilty of two-count charges of misconduct. In addition, the party had propensity to commit other misconduct counts. The MC‘s plea to the Committee was to remove her from the office of a Magistrate.

Discussion

Ms Engelbrecht asked for clarity on when remuneration would be withheld i.e. the day Parliament approved or if it would be backdated to the date the Minister approved.

Adv Meijer answered that this occurred when the Minister approved withholding remuneration, Parliament needed to confirm as well.

Ms Engelbrecht then asked for further clarity on if it was the date the MC decided or on the date Parliament decided.

Adv Meijer replied that if the MC withheld remuneration, it became effective when Parliament too confirmed.

Ms Engelbrecht requested the guidelines used by the MC to stop the salary of parties involved.

Deputy Minister Jeffery stated that salary could be stopped when the party was guilty of a criminal charge or when there was delay through challenges. However, Parliament needed to confirm and the salary would be stopped with effect from the date recommended by the MC. The reason why the salary of Ms X Stuurman and Ms V Gqiba did not stop immediately was because the MC had only given a recommendation for removal. The salary of both parties would be stopped once Parliament confirmed the removal of both parties.

The Chairperson asked Members to address the plea of the MC.

Mr S Thobejane (ANC, Limpopo) moved for the motion to accept the plea of the MC.

Ms Engelbrecht seconded the motion.

Deputy Minister Jeffery remarked that the Committee had moved on two decisions - removal of the Magistrates and stopping the salary of Mr Hole.

The Committee agreed with both decisions.

The Chairperson mandated the MC to send a written submission on financial implication of expenditure incurred since inception of the cases.

Draft Committee Minutes dated 6 September 2017

The Committee considered the draft minutes and a minor amendment was suggested.

Mr M Mhlanga (ANC, Mpumalanga) moved for adoption of draft Committee minutes dated 6 September 2017 with a minor amendment.

Ms Engelbrecht seconded the motion

Draft Committee minutes dated 6 September 2017 with a minor amendment were adopted.

The meeting was adjourned.